My Employer Didn't Pay Me, Now What?

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Employment law can be confusing and it can be difficult to learn what your rights are and what you are entitled to. When an employer does not pay for something (whether regular wages, overtime, tip splitting, reimbursements, or something else) it can be very frightening and confusing. Is the employer right? Should I even bother fighting? This is a list of ten workplace violations that employees should be aware of and for which legal help may be available:

1. Unpaid Time
When your duties include putting on or taking off a costume, some uniforms, or personal protective equipment; taking inventory of stock; setting up and cleaning a work area; or attending a meeting, you are likely entitled to your regular wages for the time you are engaged in those activities. You are also entitled to compensation for any "extra" hours you work, such as working through your lunch break, even if your employer did not require you to work the extra time. These are all considered “compensable time.” Please note, though, that if you are specifically asked not to work overtime and you do it anyway, while this may be compensable time, it may also lead to your termination.

2. Unpaid Vacation Time
The Fair Labor Standards Act (FLSA) does not require employers to pay employees for vacation time. However, if the employer does provide paid vacation, the time accrued becomes part of the employee's compensation. If you were fired or quit, you are usually entitled to payment for vacation time accrued as per the company's vacation policy.

3. "Use It or Lose It" Vacation Time
Some employers who provide vacation time adopt a "use it or lose it" policy, where they requires employees who do not use their accumulated vacation by the end of the year to lose that time all together. Use-it-or-lose-it policies are illegal in some states, so if in doubt, contact a qualified, experienced attorney who can advise you.

4. Unpaid Commission or Bonus
Bonuses and commissions are not regulated by the FLSA, so entitlement to bonuses or commissions is determined by your agreement with your employer and the laws of the state where you work. Your compensation may include commissions or bonuses based on performance benchmarks, such as production or sales quotas. If you achieved those benchmarks, you are entitled to receive the commission or bonus promised by your employer. If they did not pay, you may not have a traditional claim under the FLSA, but you may have one for breach of any employment agreement or contract.

5. Wrong Classification of Employees as Exempt Workers
“Exempt employees” are not entitled to receive overtime pay as guaranteed by the FLSA. Although confusion about exemption rules is common among both employers and employees, exemptions have nothing to do with your title or job description. Whether you receive a salary rather than an hourly wage is not enough to determine your status either. Be aware of your salary level and job duties, as they are the determining factors for your classification. Again, if in doubt, contact an attorney.

6. Independent Contractor Status
Independent contractors, by definition, are self-employed workers who are not covered by the tax and wage laws that apply to employees. The general test of whether one is an employee or an independent contractor has several factors, but the biggest is the level of dominion or control the employer exerts over the employee/contractor's work. The more control they have (for example, when to be at work, how the work is done, etc.) the more likely you are a direct employee and not an independent contractor. If you are not an independent contractor, make sure your employer is not classifying you as one, because employers do not pay Social Security, Medicare or federal unemployment insurance taxes on independent contractors and you could be saddled with a big tax bill at the end of the year.

7. Unpaid or Improperly Calculated Overtime Pay
Under the FLSA, overtime rules are based on a 40-hour work week. All work over 40 hours in a work week must be paid at a rate of one and one-half times the employee's regular hourly rate. Be sure to independently track your time if you need to bring a claim, as employer records are often inaccurate, whether intentionally or negligently, when it comes time to prove the overtime issues. Also, please note that overtime does not apply to independent contractors, so this is another reason to be sure you are properly classified.

8. Comp Time Instead of Overtime Pay
Compensatory time, commonly referred to as "comp time," is generally paid time off granted instead of overtime wages. For example, rather than paying employees time-and-a-half for overtime during a busy season, a business may offer comp time to be taken at a later date. While comp time may be legal in your jurisdiction depending on the classification of the employee, it must always be paid at the same rate as overtime wages: 150% (or time-and-a-half). In other words, if you are receiving comp time for overtime, you should be getting an hour and a half for every hour of overtime worked. Make sure you are receiving compensation for overtime work.

9. False Reporting
Many employers establish rules that overtime work will not be permitted or paid without advance authorization. Some choose to "look the other way" when non-exempt employees work overtime and do not allow those hours to be reported. These policies are a violation of the FLSA.

10. Minimum Wage Violations
Minimum wage laws can be confusing and varied, so check to see what the rates are for your particular situation. But, if you believe you have been underpaid, contact an attorney to find out for sure.

If you have experienced one of these violations, you should contact an attorney that focuses their practice on employment law. They may be able to help you receive additional compensation, and, in many instances, they may be able to recover their attorney fees from the employer if you are successful.


Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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